Discuss about the Case Study for Harassment.
In the provided scenario there has been an alleged act or corruption in which the principle of Bukit Brown Primary School [‘BBPS’] has been involved. The act has been reported by Melissa who has been denied admission to her child even after paying $10000 as donation. After investigation it was found that the claim was false and Melissa was asked to remove her post against MOE but she did not do so. Melissa has been given a notice from MOE to remove the post or she would be subjected to legal action under the Harassment Act 2014 [“POHA”].
The issue in this scenario is to advice Melissa and LMU whether or not MOE can make a successful claim against them.
POHA has been enacted to protect persons in and outside Singapore from unnecessary harassment and distress. Section 4 of POHA specifically prevents any person form using any abusive, insulting or threatening word, behavior or communication which is perceived otherwise, heard or seen by any other person and is likely to cause alarm distress or harassment. The person who contravenes such sections shall have to pay a fine and serve imprisonment subjected to section 8[1].
According to Section 15 of POHA if a person publishes through any means a statement of fact about another person which is not true the aggrieved person can apply to the district court for a relief under Subsection 2.
According to Section 15(2) the district court with respect to section 21(1) may upon such application by the aggrieved person make an order to prevent any person from publishing or continuing to publish the statements complained of by the aggrieved party unless that person he or she publishes notification which would make the court bring its attention to true facts and falsehood.
According to section 15(3) the district court cannot publish such an order under Section 15(2) unless the balance of probabilities have been satisfied by it such as the relation of the statement of fact which has been complained about with the aggrieved party and whether or not it would be equitable and just to do so.
According to section 15(4) the order provided under section 15(2) would be subjected to conditions and exceptions which would be specified by the court in the order.
According to section 15(5) he order would have effect on the person on whom the order is applicable as soon as the order is placed on him in the way as provided by the order, from the date when the order has been dispensed by the court or at a date as specified by the district court.
According to section 15 (6) the order may be cancelled by the court through an application of the author, any other person to whom the order applies and the aggrieved party.
In the case of Attorney-General v Ting Choon Meng and another appeal [2017] SGCA 6 the respondents were directors of a mobile company owning a patent in Singapore[2]. The company had filed a case against the ministry of defense stating that the ministries have infringed their rights on the patent. The proceedings were not completed due to the financial position of the company. The respondents had made several allegations against the ministry of defense through a video the video was further posted on facebook. The MOD in this case had posted another post in response to the video making clear indications that they were not involved in any such acts and the video has been posted to harass them.
The appellant in this case had appealed against respondents with respect to section 15(2) of the POHA. The appeal stated that the allegation made by the company was not true and had been posted without any notification. The order was granted by the district court but the high court upheld the appeal against the order. It was held by the high court in this case with Sundaresh Menon CJ dissenting that only a natural person is entitled to make an appeal for the order and the Ministry of Defense is not a Natural person. The court further provided that it would not be equitable and just for them to provide the order in the given circumstances.
Using the doctrine of statutory interpretation the judges held that although Section 36 and 3 of the the Government Proceedings Act provides that the government bare entitled to enforce their rights through legal action but it fails to answer the fact that such rights actually exist in the first place or not. The court held that section 15 of the POHA was the only section which could apparently be applied to entities other than human beings. The section also does not have any counter parts in any other jurisdiction and thus merely giving relevance to the actual text of section 15 would distort and defeat the purpose of the parliament behind the incorporation of the Section. Parliament intention with respect to section 15 of the POHA can also be ascertained through the analysis of the speech of the minister provided at the time of brining the legislation into the legal framework. There was further no or little evidence with respect to the interpretation of section 15 which could provide that the section extended to governments and non natural persons.
In the case of Chee Soon Juan and another v Public Prosecutor and other appeals [2011] SGHC 17 it was ruled by the court that Article 14 of the constitution provides freedom of speech and the government can impose any restriction on it if it concerns the security of Singapore[3]. Unless such restrictions have been imposed by the government the right to freedom of speech under article 14 is valid.
In the case of Derbyshire County council v Times Newspapers Ltd and others 1993 the local authority wanted to bring a defamation claim against two articles published in the defendant newspapers[4]. The appeal was dismissed by the high court stating that public authorities must be kept open to public criticism and upholding such an appeal would unnecessarily impose the threat of defamation on public criticism.
In this part of the paper the law discussed above has been applied to facts of the case in order to come to an appropriate solution.
In this scenario Melissa have posted a comment related to the corruption of Ministry of Education. She has received a letter from the MOE to take down the post or she would be subjected to legal actions under the provisions of POHA.
As discussed above Section 3 of the POHA protest a “person” from being harassed unnecessarily. Section 15 further provides protection against any false statement of fact made by a person towards another. However is this case the MOE cannot be regarded as person under section 15 of the legislation as provided in the Ting Choon Meng case. Similar to that of ministry of defense ministry of educations also is not a natural person and as interpreted by the judges in the case section 15 of the legislation is only applicable on natural persons. Thus MOE has no right to make the claim which they propose to make through their letter against LMU and Melissa. Further Article 14 of the constitution provides freedom of speech to the citizens of Singapore. Although the right is not absolute it is only subjected to restrictions made by the parliament with respect to the security of Singapore as provided in the case of Chee Soon Juan. In this case the post made by Melissa is in no way threatening the security of Singapore or has the potential to do so. Thus Melissa is protected through provision of Article 14 related to freedom of expression. She is allowed to freely express her view and her post is not illegal. Therefore along with not having the capacity to sue Melissa, MOE would also not be able to prove that the post made by Melissa accounts to harassment.
Applying the principles of the Derbyshire County case in this scenario where the court ensured the right to freedom of speech and criticism of public authorities it can be held that Melissa also has the right to criticize the ministry of education. The ministry of education can be subjected to public criticism as it is a public authority. Thus the case of Melissa would be made even stronger through the application of the principles of the Derbyshire County case as discussed above.
Conclusion
Concluding the paper it can clearly be made out that as MOE is not a natural person they do not have the right to make a harassment claim Melissa. Melissa has made her post in accordance to her right of freedom of speech provided to her by Article 14 of the constitution and there are no exceptions which prove that she has misused the right. Melissa has through her post criticized a public authority which is not legal and cannot be accounted to defamation. Thus the MOE have no claim against Melissa.
Attorney-General v Ting Choon Meng and another appeal [2017] SGCA 6
Chee Soon Juan and another v Public Prosecutor and other appeals [2011] SGHC 17
Derbyshire County council v Times Newspapers Ltd and others 1993
Harassment Act 2014
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